On behalf of the defendant-appellant, the cause was
submitted on the briefs of Harold Harlowe and Michael Herbert of Hal Harlowe & Associates, S.C.,
Madison.

Respondent

ATTORNEYS:

On behalf of the plaintiff-respondent, the cause was
submitted on the brief of James M. Freimuth, assistant attorney general, and J.B. Van Hollen, attorney
general.

2009 WI App 4

COURT OF APPEALS

DECISION

DATED AND FILED

December 30, 2008

David
R. Schanker

Clerk of Court of Appeals

NOTICE

This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2007AP2130-CR

Cir. Ct.
No.2006CF169

STATE OF WISCONSIN

IN COURT OF
APPEALS

State of Wisconsin,

Plaintiff-Respondent,

v.

Mark T. Jahnke,

Defendant-Appellant.

APPEAL
from a judgment of the circuit court for PortageCounty:Frederic
W. fleishauer, Judge.Affirmed.

Before Higginbotham, P.J., Dykman and Lundsten, JJ.

¶1LUNDSTEN, J. Mark Jahnke was convicted
of secretly videotaping his girlfriend, without her consent, while she was
nude.Wisconsin Stat. § 942.09(2)(am)1. (2007-08)[1]
makes it a felony to record another person in the nude, without the knowledge and consent of that person, “in a circumstance in
which [the recorded person] has a reasonable expectation of privacy.”Jahnke argues that his girlfriend did
not have a “reasonable expectation of privacy” within the meaning of the
statute.We disagree, and affirm the
circuit court.[2]

Background

¶2The parties stipulated to the following facts.Jahnke and his girlfriend had a three-year,
sexually intimate relationship.On April
1, 2006, while in her bedroom, Jahnke’s girlfriend knowingly exposed her nude
body to Jahnke.He secretly videotaped
her without her consent, using a video camera that was concealed under a pile
of clothing.

¶3Jahnke’s girlfriend later learned about the recording and
contacted the police.Jahnke eventually
pled guilty to making a nude recording in violation of Wis. Stat. § 942.09(2)(am)1.Jahnke received probation and a withheld sentence.

Discussion

¶4Jahnke contends that there was an insufficient factual basis
to support his guilty plea.[3]There is no dispute regarding the facts or
any aspect of the factual-basis requirement.Instead, the question is whether undisputed facts satisfy a statutory
standard.The application of statutory
language to undisputed facts is a question of law that we decide without
deference to the circuit court.State
v. Wilke, 152 Wis.
2d 243, 247, 448 N.W.2d 13 (Ct. App. 1989).We give statutory language its common, ordinary, and accepted meaning,
except that technical or specially defined words or phrases are given their
technical or special definitional meaning.State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI
58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.We must construe a statute in the context in which it is used, not in
isolation but as part of a whole, in relation to the language of surrounding or
closely related statutes, and reasonably, to avoid absurd or unreasonable
results.Id., ¶46.

¶5Jahnke
entered a plea to the recording crime defined in Wis. Stat. § 942.09(2)(am)1.That crime has four elements:

(1)the defendant recorded a person in the nude;

(2)the
recording is without the nude person’s knowledge and consent;

(3)the
depicted person was nude in a circumstance in which he or she had a “reasonable
expectation of privacy”; and

(4)the
defendant knew or had reason to know that the nude person did not know of and
did not consent to the recording.

¶6Jahnke contends that the facts do not support the third
element, the expectation of privacy element.He reasons that his girlfriend had no reasonable expectation of privacy
because she knowingly and consensually exposed her nude body to him while he
was secretly videotaping her.In
Jahnke’s view, the only pertinent question
for purposes of the privacy element is whether his girlfriend had a reasonable
expectation that Jahnke would view
her nude at the time of the recording.

¶7The State argues that there is a more precise question for
purposes of the privacy element that is geared to the specific privacy interest
the statute is designed to protect.According to the State, the question is whether the nude person had a
reasonable expectation, under the circumstances, that he or she would not be
recorded in the nude.We agree with the
State.

¶8In Nelson, we concluded that
“reasonable expectation of privacy” is not a technical or specially defined
phrase in the statute.SeeNelson, 294 Wis. 2d 578, ¶19.Rather, we looked to the common meanings of
the words “expectation” and “privacy.”Id.In this case, giving these words their common
meaning requires more than simply applying the definition we set forth in Nelson
because the different factual scenario here leads us to conclude that our Nelson
definition is incomplete.Accordingly,
we first interpret the phrase “reasonable expectation of privacy” with the
benefit of our different factual background and then, in ¶¶15 to 21, reconcile
our interpretation with Nelson.

¶9Wisconsin Stat. § 942.09(2)(am),
the recording crime, does not criminalize the viewing of a nude person, regardless of the circumstances.As the State points out, at least one other
statute, Wis. Stat. § 942.08,
our “Peeping Tom” law, addresses live viewing.Rather, the prohibited act is “[c]aptur[ing] a representation.”By placing limits on the ability of others to
record, the statute protects a person’s interest in limiting, as to time,
place, and persons, the viewing of his or her nude body.It follows that the pertinent privacy element
question is whether the person depicted nude had a reasonable expectation, under
the circumstances, that he or she would not be recorded in the nude.

¶10This
conclusion is bolstered by the interaction of the recording crime with the
subsections in Wis. Stat. § 942.09(2)(am)
that prohibit reproducing and distributing recordings.Subsection 2 prohibits reproducing a recording of nudity that the
defendant “knows or has reason to know” was recorded in violation of subsection
1.Thus, a prerequisite to a
prosecution under subsection 2 is a violation of the recording crime in
subsection 1.For example, if Jahnke did
not violate subsection 1 when he recorded his girlfriend in the nude, then he
could reproduce that recording without violating subsection 2.

¶11Similarly,
a violation of subsection 1 is a prerequisite to a prosecution for possessing,
distributing, or exhibiting under subsection 3 of Wis. Stat. § 942.09(2)(am).That subsection requires that a defendant
must know or have reason to know that the recording was made in violation of
subsection 1 or that the reproduction was made in violation of subsection 2,
which, as we have seen, depends on a violation of subsection 1.It follows that, if Jahnke did not violate
subsection 1, he could have, if he desired, exhibited and distributed the nude recording of his
girlfriend without violating subsection 3.

¶12This interaction with related subsections shows that Jahnke’s
interpretation produces absurd results.If, as Jahnke urges, the only privacy element question is whether a
person has a reasonable expectation that he or she will not be seen nude, then
Jahnke was free to reproduce, possess, distribute, and exhibit the nude recording of his
girlfriend without violating subsections 2 or 3 because his girlfriend knowingly permitted Jahnke to view
her nude in-person when they were in her bedroom together.Under this construction, Jahnke’s
girlfriend’s privacy interest in not being recorded in the nude is left
unprotected any time she permits anyone, under any circumstance, to view her
nude.If she disrobes in a medical
facility and permits medical personnel to view her, such personnel could record
her without violating subsection 1 and, of course, later share that recording
without violating subsections 2 or 3.It is one thing to be viewed in
the nude by a person at some point in time, but quite another to be recorded in
the nude so that a recording exists that can be saved or distributed and viewed
at a later time.[5]

¶13Jahnke asks us to consider an exotic dancer hypothetical.He contends that if Wis. Stat. § 942.09(2)(am)1. is interpreted to protect
his girlfriend from being recorded, then, absurdly, the statute similarly
protects an exotic dancer in a club who consents to being seen by patrons.Jahnke’s argument is flawed because it fails
to deal with the fact-specific nature of the privacy inquiry.Jahnke mistakenly assumes that persons in his
girlfriend’s situation and exotic dancers in clubs have the same reasonable
expectation that they will not be recorded.However, persons who dance nude before multiple patrons in a club open
to the public cannot reasonably have the same expectation with respect to being
recorded.At the same time, the
fact-specific nature of the inquiry means that some exotic dancers may have a
reasonable expectation that they will not be recorded.For example, while not dispositive, a
particular club may have a well-known and enforced prohibition on
recording.We discern no reason why it
is absurd to provide protection to an exotic dancer who, under the
circumstances, has an objectively reasonable expectation that he or she will
not be recorded in the nude.

¶14Therefore, we conclude that the phrase “reasonable expectation
of privacy” in Wis. Stat. § 942.09(2)(am)1. means a reasonable expectation under the circumstances
that one will not be recorded in the nude.

¶15Jahnke
argues that our interpretation conflicts with the definition of “reasonable
expectation of privacy” contained in our Nelson decision.We disagree.

¶16In Nelson, women were secretly videotaped through their bathroom
window by a neighbor in a nearby building.Nelson, 294 Wis.
2d 578, ¶¶1, 5-10.The women did not
know they were being recorded and, therefore, could not have consented to the
recording.See id., ¶10.There, as here, the propriety of the
conviction turned on the meaning of “reasonable expectation of privacy.”But the similarity ends there.

¶17The primary issue in Nelson was whether the words
“reasonable expectation of privacy” in Wis.
Stat. § 942.09(2)(am)1. should be defined in accordance with Fourth
Amendment search and seizure case law.Id., ¶¶2,
16-24.More specifically, Nelson argued
that, in keeping with Fourth Amendment jurisprudence, there is no reasonable
expectation of privacy in something that is in plain view from a place where another
person has a right to be.Id.,
¶22.Applied to him, Nelson argued, “the
women in their bathroom were in plain view from Nelson’s house, where he had a
right to be.”Id.We declined to define “reasonable expectation
of privacy” using its specialized meaning in Fourth Amendment
jurisprudence.Id., ¶¶22-26.We explained that applying the Fourth
Amendment definition was not “coherent or rational” because the balancing of
law enforcement interests with privacy interests in Fourth Amendment cases has
nothing to do with whether a non-governmental actor may capture representations
depicting nudity.Id., ¶¶24-25.

¶18It is true that, en route to rejecting Nelson’s Fourth
Amendment privacy argument, we provided a definition of “reasonable expectation
of privacy” under the recording crime statute.The Nelson definition does not refer to any expectation with
respect to being recorded, but instead asks whether there was a reasonable
assumption that one is “secluded from the presence or view of others.”We wrote:

[The statute] requires that the person who is depicted
nude is in a circumstance in which he or she has an assumption that he or she
is secluded from the presence or view of others, and that assumption is a
reasonable one under all the circumstances, meaning that it is an appropriate
one under all the circumstances according to an objective standard.

Id., ¶21.We agree with Jahnke that if this definition
is the only one that applies, then anyone who knowingly exposes his or her nude
body to another necessarily relinquishes his or her protection under Wis. Stat. § 942.09(2)(am)1.,
regardless whether there was a reasonable expectation that the person would not
be recorded in the nude.However, in Nelson,
we did not purport to provide a definition covering all circumstances.

¶19It was reasonable for the women in Nelson to believe they
could not be viewed in the nude, a
belief that, under the facts of that case, necessarily included the expectation
that they could not be recorded.Thus, when we determined whether the women
had a reasonable expectation that they were secluded from view, our
determination necessarily encompassed whether they had a reasonable expectation
that they could not be recorded in the nude.In that context, the definition we used makes sense because it comports
with the evident purpose of the statute of protecting people from being
recorded in the nude when they have a reasonable expectation that they will not
be recorded.

¶20We may not and do not hold that the Nelson definition is
incorrect; we only point out that it is an incomplete definition.Indeed, under the “evident purpose” of the statute
as set forth in Nelson itself, the statute is plainly directed at reasonable
expectations vis-à-vis not being recorded.Thus, the definition we adopt today does not conflict with Nelson,
but rather fulfills the statutory purpose stated in Nelson, and yields the
same result when applied to the Nelson facts.

¶21Finally, we note that the Nelson definition, “secluded from
the presence or view of others,” is
logically incomplete.No one could
seriously argue that, had the women roommates in Nelson been nude in their
bathroom at the same time, the result would have been different because none of
the women had a reasonable expectation that they were “secluded from the
presence or view of others,” namely, their own roommates.But under Jahnke’s narrow interpretation of Nelson,
the women would have relinquished their expectation of privacy by exposing
themselves to each other.This is yet
another indication that we did not attempt to provide a full and complete
definition of “reasonable expectation of privacy” in Nelson.

¶22The
dissent contends that our interpretation of Wis. Stat. § 942.09(2)(am)1. renders the
“reasonable expectation of privacy” element of this crime superfluous.The dissent acknowledges that § 942.09(2)(am)1.
has four elements:(1) the defendant
recorded a person in the nude; (2) the recording is without the nude
person’s knowledge and consent; (3) the nude person is in a circumstance in
which he or she has a “reasonable expectation of privacy”; and (4) the
defendant knew or had reason to know that the nude person did not know of and
did not consent to the recording.The
dissent contends, however, that, under our interpretation, anyone who has not consented to
being recorded nude (element two) necessarily has a reasonable expectation of
privacy (element three), thus rendering element three superfluous.This argument is demonstrably
incorrect.For example, a woman might agree to
have sex with a man who has told her that he has in the past secretly recorded
sexual partners.Even if that woman does
not consent to being recorded in the nude, she may have relinquished her
reasonable expectation that she will not be recorded.Another example is a person who attends, in
the nude, a popular public beach used by people who wear normal swimwear and
beach clothing, but does not consent to being recorded.Even if the nude person does not consent to
being recorded, he or she may have no reasonable expectation that there will be
no recording.Although the absence of
consent and an expectation that one will not be recorded nude often go hand in
hand, the two are not inseparable companions.

Conclusion

¶23In
sum, we conclude, based on our interpretation of Wis. Stat. § 942.09, that the stipulated facts were
sufficient to establish a factual basis for Jahnke’s plea.The facts support a finding that Jahnke’s
girlfriend had a reasonable expectation that she would not be recorded in the
nude.Accordingly, we affirm the circuit
court.

By the Court.—Judgment affirmed.

No.

2007AP2130(CR)(D)

¶24DYKMAN,
J. (dissenting).I do not join in the majority’s opinion
because it is an attempt to avoid the requirement of Cook v. Cook, 208 Wis. 2d 166, 190, 560
N.W.2d 246 (1997), that “the court of appeals may not overrule, modify or
withdraw language from a previously published decision of the court of
appeals.”[6]The majority acknowledges that it may not
hold that the meaning we gave to “reasonable expectation of privacy” in the
predecessor to Wis. Stat.
§ 942.09(2)(am)1. (2007-08)[7]
in State
v. Nelson, 2006 WI App 124, ¶¶19-21, 294 Wis. 2d 578, 718 N.W.2d 168, is incorrect,
and therefore it cannot use the words “overrule, modify or withdraw.”Majority, ¶20.Instead, the majority uses the word
“incomplete” to avoid the meaning we previously gave to the statute.Majority, ¶20.

¶25Thus, if the court of appeals uses the word “incomplete” to
differentiate one of our published opinions, we can avoid Cookin most
circumstances.While this is ingenious
wordsmithing, it is not the way a hierarchical legal system should
operate.Though we are not saying “that
was then and this is now,” the result is the same.

Where a law passed by the legislature has been
construed by the courts, legislative acquiescence in or refusal to pass a
measure that would defeat the courts’ construction is not an equivocal
act.The legislature is presumed to know
that in absence of its changing the law, the construction put upon it by the
courts will remain unchanged; for the principle of the courts’
decision—legislative intent—is a historical fact and, hence, unchanging.Thus, when the legislature acquiesces or
refuses to change the law, it has acknowledged that the courts’ interpretation
of legislative intent is correct.This
being so, however, the courts are henceforth constrained not to alter their
construction; having correctly determined legislative intent, they have
fulfilled their function.

¶27It is thus necessary to examine Nelsonto determine what
meaning we gave to the language in Wis.
Stat. § 942.09(2)(am)1.; in particular, we must examine the
definition we gave to a person’s “reasonable expectation of privacy.”In Nelson, 294 Wis. 2d 578, ¶21, we said:

If we apply the common
meanings of “expectation” and “privacy” and the well-established meaning of the
term “reasonable,” [the statute] requires that the person who is depicted nude
is in a circumstance in which he or she has an assumption that he or she is
secluded from the presence or view of others, and that assumption is a
reasonable one under all the circumstances, meaning that it is an appropriate
one under all the circumstances according to an objective standard.We conclude this is a reasonable construction
of “reasonable expectation of privacy” because it employs the common and
well-established meanings of the words.

¶28In Nelson, we did not purport to give a narrow meaning to the
statute, limited to the facts of the case.Instead, we devoted numerous pages of inquiry and analysis to determine
the meaning of the phrase “reasonable expectation of privacy” as that term was
used in the statute.This was not an
offhand comment or a footnote.Instead,
it was a successful attempt to define a statute so that future readers of the
statute would know what it meant.And we
said that this meaning was determined by whether a nude person reasonably
assumed that he or she was secluded from the presence or view of others.We had the opportunity to say what the
majority says today, but we did not.That is why Cookand Delvauxrequire that we follow Nelson.

¶29There is another reason the majority has reached the wrong
conclusion.The whole purpose of our
examination of statutes is to discern what the legislature had in mind when
adopting a statute.Here, we must
interpret a statute aimed at recording nudity.Private nudity and recording that nudity are, by themselves, benign
activities.But the legislature has
criminalized various conduct involving both nudity and recording.As explained in Nelson, the recording of
someone who is nude and has no knowledge or expectation that anyone is not only
watching them but recording them is a felony, Wisconsin’s most serious category of
criminal penalties.But secretly
recording nudity in a locker room, a place where nudity is common, consensual,
and understood, is a Class B misdemeanor, punishable much less seriously than a
felony.SeeWis. Stat. § 942.09(5).What the majority does is make its own value
judgment about recording someone who consents to being viewed nude but objects
to being recorded nude.That is not what
we addressed in Nelson.Nelsondoes not support the majority’s conclusion today.

¶30Finally, in order to make its interpretation work, the majority
does what State v. Dibble, 2002 WI App 219, ¶15, 257 Wis. 2d 274, 650
N.W.2d 908, prohibits when the majority repeals part of Wis. Stat. § 942.09(2)(am)1.We explained in Nelson, 294 Wis. 2d 578,
¶¶27-30,that the legislature had
amended a previous version of this statute after the supreme court had found
the statute unconstitutional in State v. Stevenson, 2000 WI 71, 236
Wis. 2d 86, 613 N.W.2d 90.We noted that
the legislature had added the phrase “reasonable expectation of privacy” to the
statute to create the statute we now have.Nelson, 294 Wis.
2d 578, ¶29 & n.5.

¶31We said that, following the legislature’s response to Stevenson, the
statute has four elements:(1) the
defendant captured a representation of nudity; (2) the person depicted
nude did not know of or consent to the depiction; (3) “the person … depicted
nude was nude in a circumstance in which he or she had a reasonable expectation
of privacy”; and (4) “the defendant knew or had reason to know that the
person … depicted nude did not know of and did not consent to the [depiction].”Nelson, 294 Wis.
2d 578, ¶14 (citation omitted).

¶32Under
the majority’s interpretation, one who has not consented to being recorded nude
(element two) will generally have a reasonable expectation of privacy (element
three).Majority, ¶22 (acknowledging
that, under its interpretation, the two elements “often go hand in hand”).The majority’s interpretation thus renders
element three superfluous.We are to
avoid that construction.Dibble,
257 Wis. 2d
274, ¶15.As we explained in Nelson,
the addition of “reasonable expectation of privacy” to Wis. Stat. § 942.09(2)(am)1. was intended to have a
limiting effect.As such, it must add
another element to the statute rather than merely duplicate the element of not
consenting to the recording.

¶33The majority denies rendering element three superfluous because
there may be a case where a person does not consent to being recorded nude, but
lacks a reasonable expectation of not being recorded nude.In the majority’s first hypothetical, a woman
who consents to sexual activity with a man who admits to having secretly
recorded partners in the past, but who does not consent to being recorded, may
not have a reasonable expectation of privacy.Thus, the man could secretly record her without violating the
statute.To support its interpretation,
the majority is forced to posit a hypothetical which is not only unlikely and
bizarre, but a reversion to a now-rejected concept that “no” does not always
mean “no.”Instead of highlighting any
difference between elements two and three, the majority’s hypothetical
illustrates how its interpretation of “reasonable expectation of privacy” has
changed that element into an issue of consent, by arguing that a woman who
knows of a man’s past really cannot claim to have said “no” to the
recording.If this hypothetical is
accepted, a victim’s knowledge of a person’s past criminal behavior allows that
person the freedom to again victimize, this time with impunity.The victim of secret nude recording should
not be told that she should have known better.

¶34The majority’s hypothetical also negates the majority’s key
argument—that Jahnke’s conduct is criminalized by the statute because it must be covered in order to criminalize
a reproduction or distribution of the recording.Again, most people would agree that
distribution of a secret recording of private consensual sexual activity ought
to be prohibited.But that does not mean
that all of it is.Nelson explains that some
is and some is not.Nelson tells us that had
Nelson distributed the tape he secretly made of the women in the bathroom, that
would be a criminal act.If the man in
the majority’s first hypothetical is free to record the woman who knows of the
man’s past recording, is that man also free to distribute the suspect
video?If the man in the first
hypothetical is free to record and distribute, why is Jahnke not free to do so?The majority’s first hypothetical runs
aground on its own reef.

¶35The majority’s “beach walking while nude” analogy fares no
better.What the majority has described
is the very type of scenario that caused the supreme court to hold a previous
version of Wis. Stat. § 942.09(2)(am)1.
unconstitutional in Stevenson, 236 Wis.
2d 86.Thus, the majority is really
arguing that in situations where the statute clearly does not apply (because
the supreme court has said its application would be unconstitutional), elements
(2) and (3) could be different.But
defendants are not prosecuted where the State knows a prosecution would be
unconstitutional.The majority’s second
analogy proves nothing.In situations
where it really matters, such as Jahnke’s, and in the real and not hypothetical
world, the majority has excised element (3) from Nelson.That is as much a modification of Nelson
as if the majority had overruled Nelson in that respect.

¶36The question we must answer is whether the statute prohibits
what Jahnke did.The answer is
easy.The statute does not, given the
meaning we adopted in Nelson, which is now a part of the
statute itself.See Wenke v. Gehl Co.,
2004 WI 103, ¶31 & n.17, 274 Wis. 2d 220, 682 N.W.2d 405.Whether a statute should prohibit Jahnke’s
conduct, or the conduct posited by the various hypotheticals in this case, is a
question to be answered legislatively, not judicially.Judges should interpret legislation, not
enact it.

¶37The legislature is quite capable of determining what conduct
should be criminal, and how that conduct should be punished.If the legislature does not agree with a
court’s interpretation of legislation, it can easily change the legislation to
accord with the legislature’s intent.It
has done so once with Wis. Stat.
§ 942.09, and it could do so again, or not, as it determines the proper
policy for Wisconsin.I would leave it up to the legislature.

¶38For the reasons stated, I respectfully dissent.

[1] This
statute has been amended and renumbered since Jahnke was prosecuted.See 2007 Wis. Act 118, §§ 2-6.We refer to the numbering in the current
version of the statute.For example,
Jahnke was prosecuted under Wis. Stat. § 942.09(2)(a)
(2005-06), but we refer to the identical current provision, Wis. Stat. § 942.09(2)(am)1.
(2007-08).We also discuss
§ 942.09(2)(am)2. and 3. which, apart from different cross-references
necessitated by the renumbering, are identical to the 2005-06 version.

Similarly, the dissent references the current version
of the statute.We note that the dissent
mentions the locker room situation covered by Wis.
Stat. § 942.09(5).That
subsection was added when the statute was amended.See
2007 Wis.
Act. 118, § 6.

[2] This
opinion uses the terms “record” and “recording” as shorthand for the more
cumbersome phrase “captures a representation” contained in Wis. Stat. § 942.09(1)(a).The statute defines “captures a
representation” as “takes a photograph, makes a motion picture, videotape, or
other visual representation, or records or stores in any medium data that
represents a visual image.”

We acknowledge that the terms “record” and “recording”
may not be fully descriptive of the acts covered by Wis. Stat. § 942.09(2)(am)1., and we do not intend to
limit the definition of “captures a representation.”For example, we do not address whether the
statute covers a “representation” produced by a device that does not retain
representations, but instead provides a live feed only to a remote location.

[3] Before
accepting a guilty plea, courts are required “to establish a sufficient factual
basis that the defendant committed the crime to which he or she is
pleading.”State v. Smith, 202 Wis. 2d 21, 26, 549
N.W.2d 232 (1996).

1. Captures a
representation that depicts nudity without the knowledge and consent of the
person who is depicted nude while that person is nude in a circumstance in
which he or she has a reasonable expectation of privacy, if the person knows or
has reason to know that the person who is depicted nude does not know of and
consent to the capture of the representation.

2. Makes a
reproduction of a representation that the person knows or has reason to know was
captured in violation of subd. 1. and that depicts the nudity depicted in the
representation captured in violation of subd. 1., if the person depicted nude
in the reproduction did not consent to the making of the reproduction.

3. Possesses,
distributes, or exhibits a representation that was captured in violation of
subd. 1. or a reproduction made in violation of subd. 2., if the person knows
or has reason to know that the representation was captured in violation of
subd. 1. or the reproduction was made in violation of subd. 2., and if the
person who is depicted nude in the representation or reproduction did not
consent to the possession, distribution, or exhibition.

However, as the State points out [in its appellate
brief], distribution of such images [by Jahnke] could be prosecuted under Wis.
Stats. [§ 942.09(2)(am)3.].Since distribution of such images is already
prohibited with criminal penalties attached, this court need not reject
[Jahnke’s] interpretation of the statute in order to achieve protection against
such distribution.

The State’s brief does not say
that Jahnke could have been prosecuted if he distributed the recording.Presumably the State made no such assertion
because, absent a violation of Wis.
Stat. § 942.09(2)(am)1., Jahnke would have been free to distribute
the recording.

Also, we acknowledge that it was stipulated that
Jahnke made the videotape for his private use only and that he did not share it
with others.Still, the fact remains
that if there is no initial recording crime, there can be no separate
reproduction or distribution crime, and Jahnke would be free to change his mind
and distribute the recording.

[6] That
is not to say that the court of appeals has not discovered ways, such as used
in today’s majority opinion, to avoid Cook v. Cook, 208 Wis. 2d 166, 560
N.W.2d 246 (1997),by using language other than “overrule, modify or withdraw”
even though that is the result of the opinion.SeeLaCount v. Salkowski,
2002 WI App 287, ¶15, 258 Wis.
2d 635, 654 N.W.2d 295 (distinguishing prior published opinion though facts are
identical).

1. Captures a
representation that depicts nudity without the knowledge and consent of the
person who is depicted nude while that person is nude in a circumstance in
which he or she has a reasonable expectation of privacy, if the person knows or
has reason to know that the person who is depicted nude does not know of and
consent to the capture of the representation.

I refer to the 2007-08 statutes, as does the
majority.Majority, ¶1 & n.1.The current Wis.
Stat. § 942.09(2)(am)1. is identical to the previous
§ 942.09(2)(a) (2005-06), and thus our interpretation of § 942.09(2)(a)
in State
v. Nelson, 2006 WI App 124, 294 Wis.
2d 578, 718 N.W.2d 168, applies to the current statute.